consumption on the premise. so the san francisco law is very clear. there is no smoking indoors or outdoors for any type of establishment that serves food or beverages. and mr. ahmed the choice to violate the health code by allowing his patrons to smoke indoors even after our meeting, even after i denied the exemption application, and even the follow-up phone calls that we had in 2010. i also sent a notice to comply. that was in 2011. and then there were two notices of violations that were issued in february and may of this year. so because of the continued repeat violation, the department ordered a cease and desist of smoking inside of the cafe, also insisted the complete removal of all smoking products and smoking devices, and a 30 day suspension

for the tobacco permit. now my last meeting with mr. ahmed was june 19, 2012 and he showed me his new product that he wanted to convert to, which is these rocks soaknd jis rin and the glycerin is infused with flavors. i went last night and wanted -- to observe the operations. so it was the same huka pipes being used, the smoking devices are still being lit by hot charcoal. the product is rock, but i did learn on the internet that you can mix tobacco products with these rocks. the patrons were inhaling, exhaling this heated product through the huka pipe. and then the cafe is still selling tobacco, and there were several open containers of huka tobacco products. and when i asked the employee why, if they were using this rock product would they need to

have open containers of tobacco. the employee stated that these products are now being sold in small portions to their customers. and then they tell their customers to go smoke it somewhere else. but with this smoking devices, now on the site, the huka tobacco product now sold in small portions, directly to the customer, is really no way of guaranteeing that the patrons or the employees would not add the tobacco to the rocks. the only way the department would have to verify that is to do something like a sting operation, or, you know, to go in and grab samples, while people are smoking, and this would create an enforcement nightmare for the department of public health. and i have aliana cur show to give another testimony. >> good evening, commissioners. my name is aliana cur show with

the tobacco-free project of the department of public health. i wanted to first of all add that actually smoking has been banned in restaurants in california since 1995. in 2010, we strengthened the law, through a local ordinance. so this is not really anything new. this has been on the books for quite some time. the other thing i wanted to add is that even if there were no tobacco product being used in the hukas -- and i do believe that having the tobacco products there, open in a container, it would seem that it would be very likely that the customers would put the huka tobacco product on the hot stones if there are huka pipes present. that this is sort of similar to the phenomenon of electronic cigarettes, which now were recently banned by the airport commission and they're banned on airplanes.

and this is even though there's no tobacco that is used in electronic cigarettes, the problem is that it gives the public the impression that smoking is permitted in areas where it's not permitted, and it also gives the impression to the public that there's no consequence to smoking in areas where smoking is not permitted. tobacco is still the number one cause of preventable deaths in the united states, and the two major factors that have reduced smoking in san francisco from about 20% to about 11.9% from 190 to now are snoak-free laws and tobacco taxes and that would be -- the -- if we were to allow smoking in this facility. >> so the department of public health is asking the board to please uphold the 30 day suspension because the business knowingly and repeatedly violated the ordinance since the

first meeting in june 2010. the department also is asking the board to help send a message to the public and business owners that smoking is not -- will not be allowed in prohibited areas. and the only way we can do that is by upholding the cease and desist order which includes removal of the smoking devices from the cafe. thank you. >> vice president fung: ms. young, two questions. one is the no employees -- i saw that in the bar or tavern designation. does that also apply to tobacco shop? >> first of all, i just wanted to let you know that when i did my inspections in may and june -- february and may, and when i went there last night as well, they have employees. so i mean this business has -- >> vice president fung: i'm talking about the ordinance. >> no, the ordinance does not have no employee designation for

tobacco shops and that is because in state law there was something about bars with no employees called owner-operator bars. these are no contractors, owners do everything. >> vice president fung: all right. or owners. >> yes. owners, yes. >> vice president fung: the designation as a cafe for him to sell tobacco products would require a separate permit from you? >> yes. anyone that wants to sell tobacco in san francisco must receive a permit from the department of public health to sell tobacco. >> vice president fung: does he have a permit for that? >> yes, he does. >> vice president fung: to sell tobacco. >> yes, he does. >> vice president fung: okay. thank you. >> thank you. >> president hwang: is there any public comment on this item? okay.

seeing none then we will move into rebuttal. mr. merchant, you have three minutes of rebuttal. >> i'd like to stress that i've heard no rebuttal or argument regarding the lack of an actual statute that prohibits this non-tobacco product. i think that's very clear, they have no argument about that, except for a hope that now they'll get some help from the board on this. and mr. ahmed has certainly made every effort to try to communicate and comply. unfortunately it appears that window or that possibility is very limited. and so we will -- have to take other avenues on that, and plan to do so. the issue of whether or not the enforcement of the regulations

on the books would be more difficult, if non-tobacco products were allowed, is something for the board of supervisors to take up and address by amending the regulation. and in terms of whether or not we would be willing to remove tobacco from nile cafe is something that mr. ahmed has considered and is willing to do if he is allowed to continue to possess and use the huka pipes with the non-tobacco product. >> vice presidenproduct. >> so ever since this new legislation came to light, i try to comply and try to understand and try to work every possible way to comply, and to be -- to

continue doing it legally. i see so many gaps in the whole process. and i've tried to talk to eric mar's office, eric mar, himself, david chu, and supervisor kim. and the whole thing was discussed and debated without us being present. we were not -- i did not know that this was going on. so they made some exceptions for some taverns and some cigar lounges to continue and to get grandfather status, his to continue to allow their patrons to smoke. whereas huka lounges were not because we were not part of the whole thing. i cannot serve alcohol so i cannot have a tavern license. and even if i have a tavern license, i cannot sell tobacco products because they don't allow me to have tobacco license. so it's just a catch-22

situation. so, you know, i try to understand the situation. and i made my -- say i'm a huka lounge. i have both tobacco product license and also cafe license, which is the restaurant license. so there is no category for a huka lounge in san francisco. it's a cultural thing. so a lot of people come from all over. they like to enjoy the huka pipe. they don't want to go to a bar because they don't drink alcohol. it's a venue for a lot of people from different background to kind of find this venue to gather and to talk, and to have a time together. so the other thing was to -- >> president hwang: unless i missed it, i think your time is up. >> okay. >> vice president fung: i would raise the -- just to confirm what was stated by counselor at the -- you would stop all tobacco sales, if you

were allowed non-tobacco products? >> absolutely. that's what i was trying to do. absolutely. that's what i was trying to do. from the get-go, trying to comply with the new ordinance. >> vice president fung: thank you, sir. >> president hwang: before you sit down, i might have misunderstood this, but i thought i heard the department advise -- tell us that she had advised you, as of june 2010, that you could not be allowed smoking on your -- smoking tobacco products. >> she say that she was going to send me some documents on that. >> president hwang: right. and then i think in your brief you wrote -- your lawyer wrote that you did not learn that you did not receive exemption status -- you weren't exempt. you weren't considered exempt until you received the notice of vials. >> until i received this last letter -- >> president hwang: so in that

interim period you that it it's fine for me to continue to have smoking products on my site. >> there are other huka lounges that were doing the same thing. so i did not receive any letter from them. and i saw what the other huka lounges were doing. they were in operation. so i assumed that they would come out with something, and i would get some paper, documentation. so i was waiting for that, basically. and then i did receive -- >> president hwang: so you were never advised to stop doing it. that's your position? okay. >> until recently. >> president hwang: thank you. >> ms. young. >> so, again, i would just like to make it very clear that this is a restaurant. the state laws and the local law says that there's still smoking inside of restaurants. and the ordinance does not allow or provide any provision to allow restaurants or cafes to smoke indoors or outdoors.

and i -- or any type of business to smoke, if they're located in a residential building. and since june 2010, nile cafe knew, through meetings with me, phone calls, we've had several phone calls, and notices. the first written notice was the denial of the exemption that went out november 2010. the second notice was the notice to comply. that went out august 2011. and then there was two notices of violation issued on 2012. and that was all before we even met with the director of public health. so nile cafe h written notificas between november 2010 and may 2012. but they still made the choice to violate the health code. and therefore there should not be reversal or reduction of the suspension or order. the nile cafe once they comply with the suspension and want

to -- they can contact me and we'll be willing to meet with them but i think they need to comply with the law first and then come to us and we can sit down and figure out something. thank you. >> vice president fung: ms. young, the ordinance, does it state smoking of tobacco? >> it states smoking of tobacco, plant, or other weed. >> vice president fung: and it's fairly broad then. >> it is very broad. >> vice president fung: in what it says is smoking. >> yes. >> vice president fung: what about rocks? >> it does not say rocks. i don't think anyone was aware that you can smoke rocks. >> vice president fung: me either. >> i wasn't aware of it until their lead brought it to my -- >> vice president fung: if it's non-tobacco, would the the department maintain then that the ordinance says no smoking, period? >> if it's a non-tobacco product, if it doesn't meet the definition of smoking, then it's not smoking.

but while they have tobacco products in the cafe, while they have an active permit, i don't think -- i'm not able to have any discussion with them. they need to first comply with the law, and then come and propose to the department, and the department will be open to listen, to meet with them. thank you. >> president hwang: thank you. >> commissioners, the matter is submitted. >> president hwang: go ahead. >> commissioner lazarus: mr. burton, i guess, i am confused about what nile cafe claims to be. is it a cafe? i mean you can't be a cafe and a tobacco shop, as i understand it. so what is it? >> well, in terms of what it does, it does -- >> commissioner lazarus: it operates under a license as something. >> right. it operates under a license as a restaurant, is the main license. but it also has a tobacco license to sell the product.

>> commissioner lazarus: but it's not a tobacco shop, is that -- >> under the -- the department is arguing that you cannot be a tobacco shop and serve food at the same time. that's the language of the statute. >> commissioner lazarus: well, if they're arguing it because it's in the statute, then -- >> i'm just telling you -- i'm not saying one way or the other. i'm just telling you their position. >> commissioner lazarus: and is it legitimate to argue that while there may be some ambiguity allowing someone to continue while it gets resolved you can make a similar argument that it cease happening while it is being resolved? >> i'm sorry. >> commissioner lazarus: continue to smoke in this gray area of hukas? >> i would also like to correct the assertion that this is in any way smoking. it's inhaling a vapor that is heated off of a stone. and the statute is very clear in terms of what it defines as

smoking. and it has nothing to do with these rocks, and this vapor. >> commissioner lazarus: apparently -- >> smoking has to do with smoke. there's no smoke. there is no smoke. the statute doesn't apply. >> commissioner lazarus: and you also talk about being allowed the opportunity to move the business. i'm not quite sure what that has to do with this either. >> well, under the exemption -- exceptions to the statute, there was the possibility of a grace period to move from a mixed use building to a commercial building. >> commissioner lazarus: grace period allowing what? >> the the relocation of the business. >> commissioner lazarus: but not the continued use -- >> well, at the new location, then the use could continue. >> commissioner lazarus: but that would have to be permitted as well, right? >> that would be allowed as a grandfathered business. >> commissioner lazarus: thank you.

>> president hwang: i think the appellant raises an interesting argument on the statutory interpretation of where does the huka fit in the law. i think that what we're looking at here is the failure to cease and desist smoking of tobacco, when the state law was clear that tobacco cannot be smoked in a restaurant. i'm talking. so if i -- so that seems to be what's at issue here. and the the fact that the exemption period had already expired at the point at which the appellant attempted to get one, you know, already futile at that point. i'm going to give you an opportunity in a minute, okay. i'm trying to formulate my thoughts and you're disrupting

that formulation process. but that's where i'm going with this, which is that it seemed to me -- it seems to me, and you're going to have an opportunity to correct if i've totally got this wrong -- but that's where i'm looking at this -- the issue before us, which is -- i think a suspension, based on the failure to cease and desist the smoking in a restaurant over a two year period of enforcement. okay. go ahead. did i say something that was improper from your perspective, factually or are you going to make another argument. >> i am not going to make another argument. the one that i -- and i don't think you did anything improper. just that the exemption exception period ha had not cead at the time that he made his application.

>> president hwang: okay. thank you. >> and the point is that my hope is that the board will see that this border is overbroad and that it prohibits legal activity. >> president hwang: thank you. >> vice president fung: you know, the problem -- the ordinance made by some people be considered overbroad. however, the definition that is being asked of this board is extremely narrow.

and the ordinance, i think, is quite clear, in terms of how it defines. and the question of -- that raises some element of grayness to that ordinance is what happens with non-tobacco products. although it does say smoking of any tobacco or weed or whatever else. i'm not sure i have enough here to be able to overturn the department's position. perhaps if it was only a huka lounge, smoking non-tobacco,

that may make their position a little bit more palatable to the department. >> commissioner lazarus: if you don't mind, i do have, ms. young, a question on what steps, if any, the department has taken to address the huka question. i mean the appellant has spoken to three of our supervisors. and i'm wondering where your department's going with this issue. >> so i have informed all of the business owners who wanted to change to huk-a that right now with the existing law in the book the only way that you're going to be allowed to smoke is if you are a bar, tavern, or

tobacco shop, and the smoking occurs in an outdoor patio. and there's no smoking within 10 feet of a door leading to the patio. that's the only way that you can smoke. so unfortunately, there's not much the department can do, unless -- until there is another law on the book. >> president hwang: and that was, what you just described, is a policy that was developed in it your department? >> so based on the law, it limits everyone to -- that's the schematic, that we're limited to. so -- as far as smoking indoors, that's prohibited. and the exemption that they're talking about never applied to restaurant. you had to have been a bar, tavern, or tobacco shop, in a commercial building. >> president hwang: right. but going to the appellant's

core argument that this falls outside of that non-smoking provision, it makes this very difficult. okay. thank you. well other than that, you're, at this point in time, ms. young, your department is not doing anything further to address this particular -- i mean if the issue has been presented that this falls outside of the smoking ban, and the ordinance, then what are you all doing? >> right now, this is the first business actually using a rock and glycerin product. everyone else is still using the basic traditional tobacco, or some version that has plant that fits into the definition. so this is the very first one -- that we've seen this product at all on the scene.

>> president hwang: thank you. that's helpful. >> thank you. >> vice president fung: commissioners, i'm prepared to move, if there's no further comment. i'm going to move that we deny the appeal and uphold the department's 30 day suspension. on the ground that the ordinance prohibits, at this point in time, this particular activity. >> were i to vote in favor of that motion, i would want to add that the policy basis also submitted by the department is a compelling factor. >> vice president fung:

actually, you know, commissioner, i would be willing to overrule the department, if you were... >> president hwang: tell me why. >> vice president fung: except for one issue. i think it's probably a victimless crime, but the one issue is the residential units up above. >> president hwang mean, you'd be -- if i were to -- >> vice president fung: i'm not antismoking. >> president hwang: that's not what i was talking about. i was talking about encouraging people to -- having the appearance that smoking is permitted in a venue such as restaurants. that's what i was -- >> vice president fung: i understand. >> commissioner lazarus: if i may just add, but it is residential units. so that does sort of further add the department's case, does it not? >> vice president fung: yes, i

believe so. >> so there's a motion i believe on the floor to deny the appeal and uphold the suspension on the basis that the ordinance prohibits smoking at restaurants, and also with a friendly amendment, i don't know if you've accepted, that the -- >> vice president fung: i have. >> -- the dph policy -- if you could repeat your statement. >> president hwang: i felt that the arguments -- the dph policy to avoid allowing the appearance of permitting smoking in restaurants is compelling.

>> vice president fung: was that clear? >> yes. i'm waiting for mr. pacheco to write it down. >> this is a motion from vice president fung to deny the appeal, uphold the suspension on the basis that the ordinance prohibits smoking in restaurants, and on the basis that the dph policy to avoid having the appearance of smoking in restaurants is compelling. on that motion, president hwang aye. commissioner hurtado is absent. commissioner lazarus, aye. 3-0, the suspension is upheld on that basis. >> president hwang: thank you. >> i'll call item 7 (7) appeal no. 12-089 henry johnson, appellant(s)

versus police department, respondent. 1195 quesada street. appealing the denial on july 23, 2012, of tow car operator permit for hearing today. we will start with the appellant, mr. johnson. you have seven minutes to present your case. >> good evening to you all. i'm here today -- the decision that they made due to a fine that my first permit i should have kept, and instead of the second one. i don't want to waste too much of your time tonight, but i have a family to feed and this is what i do here in san francisco, tow cars for the last 17 years. and never had no problems here. so that's what i'd like